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We had a rare to take a look this week in the legal world of antimonopoly and its application in the games industry. Google is appealing its loss in an antimonopoly trial, since the EPIC games convinced a federal court that Google had illegally acted as a monopoly when restricting Epic’s access to Android users.
Now Google has taken the case to the United States Court of Appeals and is trying to obtain the remedies that Epic Games won. The two parties argued before a panel of three federal judges in San Francisco.
The case began in 2020, when Epic Games filed demands against Apple and Google the same day, after eliminating Fortnite from their stores, after Epic tried to allow users to download Fortnite or buy Fortnite products through their smartphones based In Apple and Google since directly within an epic games application. Apple won the antitrust demand, while Google lost.
I also had the opportunity to listen to Google financing developers Developer alliance This week, while talking about the arguments they had about the remedies and how they could damage their businesses. It was a rare opportunity to listen to some of the parties, supporters on behalf of Google, express their views, as detailed in a Amicus letter Filed in favor of Google. Google also faces difficult application remedies in Google’s search antiponopoly demand. They noticed something that Apple and Google repeatedly mentioned: that security concerns meant that it should not be easily allowed to “agree” Fortnite to the user’s phones because it introduced security risks. Epic argued that his security was fine and this was an attempt to create friction or prevent users from deviating from Google Play Store.
In the case, I think Apple won against epic games in part because it was a monolithic company. Apple could decide your own policies for your store and also enforce the policies in the phones it does. Google, however, had no such control over the ecosystem. Rather, he had to persuade telephone manufacturers like Samsung to adopt Android and use the Google Play store. But that is where he got into antitrust problems with a trace of real evidence.
Epic Games argued that Google paid Samsung for Google Play Store to be the predetermined store on Samsung phones and keep others as the Epic game store. Epic Games called witnesses who were former Google employees and confirmed that this was Google’s intention to sign those contracts. Because Google paid to keep Epic and others outside Android’s smartphones and that probably damaged consumers in the form of higher prices, the jury discovered that Google violated the antimonopoly law.
I heard the arguments before the court on a live broadcast. A panel of three judges listened to arguments from both parties for two hours and pointed out that they seemed skeptical about Google’s appeal.
Epic Games argued that Google monopolized the way the consumer accesses and pays applications on Android devices. In 2023, a jury concluded that Google illegally blocked the competition, and a judge of first instance ordered that the Google Play store changed. Google is attractive. Meanwhile, Epic Games lost all his statements against Apple in a similar antimonopoopoopoopoopoly case, winning only one matter to the right for developers to announce lower prices in alternative applications within their App Store applications. Google agreed to pay consumers $ 700 million and make changes in response to a lawsuit by state general prosecutors for game practices.
The American lawyer of Hogan Lovells, Jessica Ellsworth, represented Google. She argued that Apple’s victory against epic games should prevent an opposite result in the case of Google.
Jessica Ellsworth for Google argued that Google and Apple are fierce competitors and that this should be taken into account when Epic Games argues that they are monopolists. She argued that Apple’s application store, the Google Play store and other Android stores compete for mobile games transactions in a market that is fundamentally competitive. And he noticed that Apple won, while Google lost.
“You cannot miss a problem that is completely litigated the first time and then pretend that this did not happen and try to obtain a different result against a different adversary,” said Ellsworth, which implies that this is what Epic did when he lost Apple And then won against Google. The discussion focused on whether Apple’s case was “previous”, where Apple’s victory against Epic should prevent an epic victory over Google. A judge asked Ellsworth if he believed that the second trial should never have taken place.
Ellsworth also argued that the judge at the Google trial, the United States district judge, James Donato, did not instruct the jury about what was required to prove how the defendants handle sales of the accessories market, while He said Apple’s jury received such instructions.
“The same products should be subject to the same legal framework of government,” he said.
Judge Danielle Jo Forrest said that each case has to stay on its own. In the case of Apple, Google claimed that the judge told the jury to solve what the relevant market for the antimonopoly application was. Google presumed that, if they were told to do so in their case, the jury would have discovered in a similar way that Google did not have the monopoly in the relevant market. The judge asked if the instruction error was a reason to throw the jury’s conclusion.
“What we are saying is that the jury did not receive the appropriate instructions on what is the standard to find an accessories market, so not to have been properly instructed, which is presumed detrimental,” said Ellsworth, Google’s lawyer. “We know that it was harmful here because that is the same element of an antitrust claim. That is why the markets proposed by Epic, this isolated approach, failed in the case of Apple. “
The judge replied that a general antimonopoopoopoolio principle is that you take all cases about your facts. And there are “clear differences between the world of Android and the world of Apple”.
Judge Gabriel Sánchez also said that he was having difficulties on the grounds that the companies were somehow in the same position, although Apple does phones while Google creates software.
The senior circuit judge Margaret McKeown replied: “The fact that they are players in the same market does not mean that Apple’s case is preliment here.”
Gary Bornstein, co-shown of litigation in Cravath, Swaine & Moore, spoke for Epic Games. The lawyer pointed out the differences between Apple phones and Google’s business model, where he did not sell devices, but made transactions with people like Samsung.
“The problem is a continuous delay in relief to a market that has been suffering under anti -competitive behavior for most of a decade,” said Bornstein. “Send it back so that the District Court will write an opinion is completely unnecessary. And my friend made the comment before there is a problem here because we have no findings about the definition of the market and the conclusions on the competitive effects of the District Court as we did in the case of Apple, enough for this Court to evaluate. And I quote the responsibility decision, jurors decide responsibility in antitrust cases all the time. There is no reason why this court needs to review a responsibility decision.
He said there was no inconsistency between the two cases because there were superimposed markets. Apple operates everything, from doing the phone to creating the App Store in it. Google does not operate the entire ecosystem, and consumers behave under a different structure with Android.
“For there to be a preclusion, which is really the context in which this problem is presented to the Court, there must be some real inconsistency, so the two results cannot be correct at the same time,” said Bornstein. “That is not true here. It can have overlapping markets, even if one accepts, only hypothetically for a moment, that the finding in epic versus apple on the nature of the market was taken carved in stone, that would not prevent because it would not be inconsistent with the existence of the markets found by the jury “.
Bornstein played Google when he argued that the changes Donato ordered would result in great damage to user privacy and safety. The Epic Games CEO, Tim Sweeney, has called the 15 steps required to leave Fortnite on an Android phone “fear screens.”
Microsoft presented a brief in support of the epic games, as well as the Federal Trade Commission. David Lawrence, Director of Policy of the Antimonopoolio Division of the United States Department of Justice, argued in support of defending Epic’s victory.
“The district courts have broad authority and discretion to elaborate monopolization remedies, and when the law has been violated, the remedy must restore competition. Today we are more worried than Google’s arguments threaten those base principles. We would like to urge this court not to adopt categorical restrictions proposed by a lawyer here at the corrective discretion of the district courts, ”said Lawrence. “We are concerned that these limitations, if adopted, could prevent future courts from fulfilling their duty under the law to restore competition to monopolized markets.”
Lawrence said: “We have illegal behavior that affected the point of sale, if competitive application stores were preloaded on Android phones. These Android phones are in the hands of millions of Americans today. Restoring fair competition through that avenue could be more interventionist. Loading application stores directly under the phones, without the user wanting to interact with the point of sale in a really interventionist way. This court determined that what we believe is a very reasonable means to open the competition. He took the application stores that are already there on the phone on Google Play Store, and said that a client wants to download a competitive application store, let it use that store for a limited time period, as necessary to reopen the market to The competition. “
The Court of Appeals is expected to rule this year and will probably be appealed to the United States Supreme Court.
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